State v. Atkinson, 45123
| Decision Date | 08 October 1956 |
| Docket Number | No. 45123,No. 1,45123,1 |
| Citation | 293 S.W.2d 941 |
| Parties | STATE of Missourl, Respondent, v. Roscoe ATKINSON, Appellant |
| Court | Missouri Supreme Court |
E. V. Kell, West Plains, John A. Johnson, Ellington, Rogers & Rogers, G. W. Rogers, Clyde Rogers, Gainesville, for appellant.
John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.
HOLMAN, Commissioner.
Defendant, Roscoe Atkinson, was charged by indictment with committing the 'detestable and abominable crime against nature' with a certain named 'minor boy of the age of 15 years' by inserting his sexual organ into the mouth of said boy. This is made an offense by the provisions of Section 563.230 RSMo 1949, V.A.M.S. A jury found the defendant guilty of the offense charged (sodomy) and fixed his punishment at imprisonment in the penitentiary for two years. From the ensuing judgment and sentence he has appealed.
In this court the defendant contends that the trial court erred in (1) admitting, over defendant's objection, testimony of similar offenses between the defendant and parties other than the prosecuting witness; (2) admitting, over defendant's objection, tstimony as to similar offenses committed between defendant and the prosecuting witness at times other than the date mentioned in the indictment; and (3) in not discharging the jury after the members thereof were permitted to separate without the consent of the prosecuting attorney and the defendant.
Since the defendant does not question the sufficiency of the evidence to sustain a conviction, we deem it unnecessary to narrate with particularity the loathsome occurrences that were detailed in the evidence. Such facts will be stated, however, as are necessary to an understanding of the questions presented.
The evidence offered by the State indicates that during the year 1953 defendant operated a dry goods store in Willow Springs, Missouri, and a hotel in West Plains, Missouri. His family occupied an apartment at the rear of the first floor of the hotel. However, defendant generally slept in a room adjoining the lobby, apparently so that he would be available, if needed, in connection with the operation of the hotel. The prosecuting witness worked for the defendant in the store at Willow Springs from the latter part of August until about October 8, 1953. During this time he slept with the defendant in his room at the hotel and would ride with him each morning to Willow Springs and back each evening to West Plains.
According to the testimony of the prosecuting witness the defendant, during this period, repeatedly committed with and upon him the unnatural sexual acts which constitute the crime of sodomy. Two other young boys had been employed by the defendant at various times during the year 1953 in about the same manner as was the prosecuting witness. Each of these boys testified that defendant had told them that he had committed unnatural sexual acts with the prosecuting witness. These two witnesses were further permitted, over defendant's objection, to testify that the defendant had sodomitic relations with them throughout the time they worked for him. It is this latter testimony which forms the basis of defendant's most serious contention of error in the trial under review.
It is a well-established general rule that evidence is not admissible to show that the defendant is guilty of the commission of other independent crimes, either as foundation for a separate punishment, or as aiding the proof that he is guilty of the one charged, and this is true even though they are of the same nature as the one charged in the indictment. State v. Spinks, 344 Mo. 105, 125 S.W.2d 60; State v. Bowman, 272 Mo. 491, 199 S.W. 161. There are, however, a number of exceptions to this general rule. 'Evidence of other crimes isalways admissible when such evidence tends directly to establish the particular crime, and it is usually competent to prove the motive, the intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so ralated to each other that proof of one tends to establish the others, or the identity of the person charged with the commission of the crime on trial.' 20 Am.Jur., Evidence, Section 310, page 289.
Actually, the contention here presented by defendant has already been ruled favorably to him by this court in a companion case against this same defendant, which was decided after the trial of the instant case. State v. Atkinson, Mo.Sup., 285 S.W.2d 563. In that case (involving a different prosecuting witness) all three of the boys heretofore referred to were permitted to testify to acts of sodomy committed by the defendant. The State there sought to justify the admission of the evidence on the ground that it was first elicited by the defendant on cross-examination. It was pointed out in the opinion, however, that the State had brought out, on the direct examination of these witnesses, that defendant had threatened to commit acts of sodomy upon said witnesses. This was held to be reversible error. In the instant case the acts of sodomy (not threats) were proved by the State upon the direct examination of these witnesses. If proof of threats to commit independent criminal acts is reversible error, it would necessarily follow that proof of the actual commission of these crimes would likewise require a reversal of the judgment.
In the case now under review the learned Attorney General requests that we reexamine the ruling in the Atkinson case, supra, in the light of certain arguments that were not advanced by the State in that case. In the instant case it is said that the facts call for the application of a...
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State v. Kelley
...too far in attempting to bring evidence of other crimes which are not necessary at all to the establishment of his case.' In State v. Atkinson, Mo., 293 S.W.2d 941, the court in passing on this question said: 'Generally, evidence is not admissible to show that defendant is guilty of the com......
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State v. Selle
...to establish defendant's guilt of the charge for which he is on trial. State v. Summers, Mo., 362 S.W.2d 537, 542(10); State v. Atkinson, Mo., 293 S.W.2d 941, 942(1); State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923(1). But while th......
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State v. Sapien
...as to crimes such as sodomy, would ... be likely to have a decidedly prejudicial effect upon the jury.’ ” (quoting State v. Atkinson, 293 S.W.2d 941, 944 (Mo.1956))). The presumption of prejudice is not overcome here. State v. Barriner, 34 S.W.3d 139 (Mo. banc 2000), identifies the followin......
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State v. Bernard, No. 74775
...scheme or plan, it must be shown that the prior crimes had "some relation to the general criminal enterprise." Id. In State v. Atkinson, 293 S.W.2d 941 (Mo.1956), this Court specifically rejected application of the common scheme or plan exception in a case involving evidence of prior sexual......